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International Journal of Canadian Studies
International Journal of Canadian Studies
The Two Souls of the Canadian Charter of Rights and
Freedoms
Giancarlo Rolla
Democracy, Rule of Law and Human Rights. Canada
25 Years after the Charter of Rights and Freedoms
Numéro 36, 2007
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Conseil international d’études canadiennes
ISSN 1180-3991 (imprimé)
1923-5291 (numérique)
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Giancarlo Rolla "The Two Souls of the Canadian Charter of
Rights and Freedoms." International Journal of Canadian
Studies 36 (2007): 329–345.
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Giancarlo Rolla
The Two Souls of the Canadian Charter of Rights
and Freedoms
Introduction
It is conventional wisdom that the acknowledgment and the safeguard of
rights focusing on the protection and support of the human person are a
result of constitutionalism, which rejects absolute government in favour of
a system based on the rule of law. Provided that a system based on the rule of
law is firmly founded on fundamental human rights, their safeguard and
protection play an essential role in defining the essence of democratic legal
orders: namely, they represent a condition for their existence. In other
words, these rights turn out to be a key factor in the making of a
constitutional system, since they contribute, along with other high-ranking
principles, to establishing the constitutional values ofa democratic country.
An undeniable bond—both historical and cultural in nature—connects
all constitutions currently in force to the ideals originating from those past
revolutions that led to the recognition of such rights. Even so, plenty of
changes have significantly affected the perception of humanrights,as well
as of their protective measures. Specifically, the most recent bills of rights
have unique, distinctive elements, compared with traditional models. In our
opinion, the most interesting feature is represented by a new and improved
version of the personalism principle.
If it is understood that the human person—together with the relevant
need for protection—has always been regarded as the focus of modern
constitutions, it is obvious that throughout the shift that moved awayfroma
liberal system based on the rule of law towards a more socio-democratic
system, the individualistic concept of the human person was gradually
replaced by a more advanced notion, according to which the individual
cannot be deemed as an isolated being, but as a participant of society and of
community life. As a result, this adjustment in perspective determined an
enhancement of the values on which constitutional bills are grounded: in
other words, not only freedom and equality are to be considered
fundamental, but now also dignity and solidarity must be awarded the same
recognition. Therefore, the personalism principle gradually changed, in
order to keep up with the system's evolution into a state based on the rule of
law.
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36,2007
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In the most long-standing liberal systems, charters acknowledged the
existence of a society, where all citizens—in abstract—were considered
equal. Also, they mainly regulated those legal institutions aimed at securing
individual freedom (especially, habeas corpus, freedom of movement and
trade, freedom of religion, private property, and the other so-called
freedoms ofthe first generation). However, the later "welfare state" version
of constitutionalism made possible a more socially oriented perception of
the human being. As a result, all citizens have now become men and
women, actual human beings with their own individuality. This
development was achieved in various stages. Initially, allrightsrelating to
the principle of freedom were associated with the principle of equality.
Thus, civil rights were linked to both social rights and political rights. The
principle of equality was granted constitutional priority, not only in
connection with its formal aspect, according to which everyone is equal
before the law, but also with respect to its substantial dimension. In fact,
given the many actual forms of discrimination in society, public authorities
are expected to step in and remove all obstacles that prevent true equality
among individuals. As a result ofthis, social policy and active measures are
given constitutional underpinning.
Modern legal orders are increasingly aware that societies are now less
homogeneous on account of pervasive economic, social, and political
differences. Societies have also become more multiethnic and
multicultural. Hence, the recognition of existing differences has become a
matter of great interest.
If it is obvious that humanity in general is fascinated by the idea that all
people are created equal, it is just as evident that society as a whole brings
out existing social differences. When such "non-equalities" are linked with
episodes of historically- and socially-based discrimination, or with
particular conditions that make some individuals more vulnerable than
others, then they must be removed, as they are likely to develop into
grounds for discrimination. When, on the contrary, such "non-equalities"
have to do with differences that both help to promote personal growth, as
well as help to constitute the identity of a group, then they must be deemed
positive and pursued accordingly.
Assuming the positive value of differences as the keystone of our
argument, it follows that such "non-equalities" have to do with both the
private and public aspects of each individual person's life. Indeed,
according to Article 2 of the Italian Constitution, "the Republic recognizes
andprotects the inviolablerightsofeach person, as an individual as well as a
member of any social structure in which one expresses his or her
personality." Both the private and communal aspects of human personality
are clearly acknowledged in the 1982 Canadian Charter of Rights and
Freedoms. Specifically, section 7 recognizes and safeguards the individual
and natural degree of personal autonomy in making decisions of
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fundamental personal importance, while section 27 acknowledges personal
public involvement in larger social groups, which derive their well-defined
individuality from commonly felt and historically reinforced ethnic,
linguistic, and cultural factors.
Acknowledging Universally Recognized Rights Together with
Cultural Divergences: Conflict within the Canadian Charter of
Rights and Freedoms
The Canadian Charter of Rights and Freedoms tries to expose the "two
souls" possessed by each individual at once, in an attempt to bring them
together and harmoniously combine them.1
On the one hand, the Charter purports to establish a common platform of
rights for all Canadian citizens, while on the other it tries to recognize the
importance of Canada's multicultural nature, together with the current
existence of indigenous communities holding inherent rights. Therefore,
the Charter of Rights and Freedoms concentrates on two different
objectives: it aims to guarantee the samerightsto every Canadian citizen,
but at the same time it also tries to provide constitutional recognition for all
ethnic identities living together in Canada's unified society.2
Sections 2 to 12 ofthe Charter list several individualrights,including the
freedom of religion, the freedom of expression, the right to assembly, the
freedom of association, therightto bodily integrity and personal safety, the
right to due process of law, and protection against cruel and unusual
punishment. In addition, section 15(1) establishes the principle of
non-discriminatory treatment before and under the law, while section 15(2)
recognizes the legality of affirmative actions aimed at improving any
disadvantageous condition of individuals or groups, should they be
founded on race, national or ethnic origin, colour, religion, sex, age, or
mental or physical disability.
However, several other sections of the Canada's Constitution Act, 1982
(which includes the Charter) attempt to balance the protection of
universally recognized human rights with rights that, instead, are
acknowledged exclusively on account of shared cultural identity. This is the
case, for example, with section 25 of the Charter and section 35 of the
Constitution Act, 1982. These sections, respectively, provide that any
pertinent treaty, right, and liberty cannot in any way be abrogated or
derogated by way of the Charter and acknowledge the rights of the
Aboriginal communities residing in Canada.3 In addition, section 27
provides that "this Charter shall be interpreted in a manner consistent with
the preservation and enhancement of the multicultural heritage of
Canadians."4
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There are also several general principles aimed at promoting the right
balance between universally applicable rights and specific derogations in
favour of definite groups: such is the purpose of the Charter's so-called
"notwithstanding clause," contained in section 33, and the "reasonable
limits" clause, contained in section 1, which can justify a law that otherwise
violates one of therightsguaranteed under the Charter, because that law is
acceptable in a "free and democratic society."5
On this point, it is worthwhile to call attention to the argument that the
free and democratic society clause implies acceptance of the principle of
multiculturalism. As Justice Quigley held in a case examining the
constitutional validity of Canada's "hate speech" laws, society can be
regarded as free and democratic only when it acknowledges the principles
of equality and multiculturalism.6 Likewise, the protection of the
multicultural heritage constitutes a public interest, since racial tolerance is
an essential ingredient for the good performance of a free and democratic
society.7
Further proof of this can be found in the 1989 Report by the Canadian
Human Rights Commission. It stated that multiculturalism involves
accepting existing differences and in recognizing that such differences are
in themselves equal. All ethnic communities represented within Canadian
society deserve equal dignity and worth. As a result, these ethical and
political claims can be read as an interpretation of the constitutional
principle of equality, as seen through the lens reflecting Canada's
multicultural nature.8 The apparent conflict between the recognition of
universally accepted rights and the protection of socio-historical
differences has not been the only cause of friction within the Canadian
constitutional order. Throughout Canadian history, when the country has
been under stress, legislators and judges made a great effort to preserve the
nation's stability. This was true during the struggle dividing the federal
government and the provinces over their respective boundaries of
legislative jurisdiction. The legal system has also been involved in settling
differences deriving from historical antagonism between the
English-speaking and the French-speaking communities. The latter
disputes have resulted in progressively deteriorating interaction between
the province of Quebec and the rest of the federation. Lastly, a degree of
instability has been caused by economic differences, prompting Western
provinces (such as British Columbia and Alberta) to constantly press the
politically established and prominent central provinces, Ontario and
Quebec, for greater political visibility. The Western provinces' increased
economic power comes from the extensive use of their agricultural and
natural resources, as well as surging population growth.
As a result of these different reasons, the Canadian Charter of Rights and
Freedoms has set out on an ambitious quest: to combine the various
elements making up social and institutional pluralism in Canada, in order to
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develop a common federal law applicable to the entire country. According
to this approach, then, the Charter of Rights and Freedoms seems to acquire
a much greater institutional import and goes beyond the mere cataloguing
ofrights.It appears to be the keystone on which to build the country's unity,
in light of universally recognized values, despite the fact that individuals
living within Canada are linguistically, culturally, and economically
different. Therefore, the Charter is supposed to serve as a channel for the
integration of all social groups settled in different parts of the country.
The Constitutional Recognition of the Right to Freely Express
One's Lifestyle
Keeping in mind the schema introduced at the beginning of this paper, one
can view section 7 of the Canadian Charter of Rights and Freedoms as
specifically acknowledging the individualistic dimension that shapes each
human being. This section provides that "everyone has the right to life,
liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice."9
The section is difficult to interpret and apply, as illustrated by the
contradictory results reached, not only by legal theorists, but also by courts.
At the outset, it is crucial to determine whether section 7 represents a
procedural or a substantive safeguard.10 Should the latter be the chosen
assumption, it is then necessary to determine the section's exact intent, thus
revealing the precise meaning of the expressions selected.
From the beginning ofthe Charterers,, certain authors regarded section 7
as a procedural safeguard: in other words, it must be construed as the basis
for procedural fairness.11 Legal commentators employed different
arguments to come to this conclusion. First, they considered section 7's
strategic placement within the Charter of Rights and Freedoms, where it is
in fact the first section ofthe part relating to legalrights.Also, those authors
resorted to a comparative analysis, as well as taking into account the
constituent's original intent.
Just as the Fifth Amendment to the U.S. Constitution sanctions that no
person shall be deprived of life, liberty or property without due process of
law, it followed (for those Canadian authors) that section 7 provides for the
abridgement of selected rights (rights to life, liberty, and security), as long
as specific procedural safeguards, arising from the due process of law
principle, are secured.
Other authors seem to reach similar conclusions, even though their
arguments pursue a different route, as they believe it is necessary to
interpret the content ofthe Charter according to the constituent's original
intent. In their opinion, based on examining the Charter's travaux
préparatoires, the intention was never to confer on section 7 an innovative
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function that would distinguish it jfrom what was stated in the Canadian Bill
ofRights of 1960. Section 2(e) of the 1960 Bill of Rights provided that no
law of Canada shall be construed or applied so as to... deprive a person of
the right to a fair hearing in accordance with the principles of fundamental
justice for the determination of his rights and obligations.12
However, such interpretations of section 7, which restrict its scope to
mere procedural fairness, have not been widely accepted. Originalist
theories, which are popular in North America, though not commonly found
in European legal literature, seem to ignore that eveiy constitution is a
living tree—or "living law," according to the terminology employed by
Italian legal theory. As a consequence, once its provisions have entered into
force, they become part of the actual legal order, separatefromthe original
legislator's intents. Theirmeaning is not necessarily the one assigned by the
constitution-drafters, but rather the one that gradually derives from the
application oflegal principles and interpretative techniques. Ifthis were not
the case, the legal order would remain fossilized, and the law could not
evolve together with society and customs. As stated by the Supreme Court
of Canada in connection with the meaning of section 7, an evolving
interpretation of the law is included in the inherent domain of the judiciary
as guardian of the justice system.13
In addition, a comparative analysis extending to other constitutions is
still not entirely probative, since section 7 differs from section 2(e) of the
Canadian Bill of Rights of 1960, as well asfromthe Fifth Amendment to the
U.S. Constitution. Specifically, while those earlier provisions consist of
only one clause expressly dealing with a procedural safeguard (i.e., due
process of law), the Canadian Charter introduces two separate and
independentrights- therightto life, liberty and security, on one hand, and
therightnot to be deprived thereofexcept in accordance with the principles
of fundamental justice, on the other. As between the two, only the latter can
be regarded as possessing an undeniable procedural connotation. By
contrast, the importance ofthe former is purely substantial, in the sense that,
even as life, liberty, and security are awarded their own, specific meaning,
they simultaneously take part in safeguarding a common legal interest,
namely, a special area of human privacy.
In particular, therightto life protects a person through his or her entire
course of life,fromthe moment one is granted legal personality, up until he
or she is declared legally dead.14 The expression liberty, instead, does not
cover only physical freedom (the traditional habeas corpus), but it also
includes personal privacy. Specifically, therightto liberty embraces many
different expressions of human individuality, which can be summed up in
every person's right to freely determine his or her actions, and more
precisely, to own a certain degree of autonomy in making decisions of
fundamental personal importance, and in particular, a degree of personal
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autonomy over important decisions intimately affecting their private
lives.15
Such profound autonomy or self-determination can be found, for
example, in a woman's right to have control over her body, and therefore,
over every stage of her pregnancy.16 Also, it can be detected in every
individual'srighttofreelyplay a role in society, to see the world according
to one's own opinion. Similarly, the right to liberty consists in the power to
dispose of one's body, even if suchrightcan be limited only as far as public
interest will allow.17
Lastly, the term security has typically been construed according to the
definition provided by the World Health Organization, which recognizes
the personal right to a state of complete physical, mental, and social
well-being. In other words, the concept of security also refers to both
physical and psychological well-being, thus making it possible to infringe
on therightto security should a third party interfere with a person's privacy:
such behaviour could affect psychological security, causing anxiety, stress,
and emotional trauma.
Obviously, section 7 of the Charter cannot be construed to the point of
positively recognizing a constitutionalrightto benefit from the services
supplied by a welfare state. It is readily understood that social rights—as
they are subject to governmental discretionary power—are not absolute
and therefore must be balanced with other constitutional principles and
values. However, there is no doubt that by virtue of this constitutional
provision, it is illegal for public powers to deprive anyone of a minimum
level of economic comfort necessary to satisfy basic needs, because in such
a case human dignity would most certainly be compromised.18
Even though they are distinct, the three expressions of life, liberty, and
security all originatefromthe more general notion of human dignity. As
stated by the Canadian Supreme Court, section 7 involves the right to
personal dignity and arightto an area of privacy or individual sovereignty
into which the state must not make arbitrary or unjustified intrusions.19
The principle by which human dignity has constitutional status allows
for a double interpretation of its meaning: the first relates to a more
individualistic context, while the second concerns social relations. The
former is connected with therightto the respect and protection of one's
reputation, that is, of one's good name, reputation and integrity. The latter
can exist only if there is a social conscience aimed at preventing
unavoidable social differences from being converted into reasons for
exclusion or grounds for discrimination. By virtue of suchright,it then
follows that all persons must be granted the same respect, despite their
different social position: in other words, they must be treated as an equal.
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That is, the social environment must provide for relationships inspired by a
natural duty of mutual respect.20
Likewise, recognizing the equal dignity of groups only represents the
other side ofthe need to prevent social discrimination. As Justice Iacobucci
has clearly stated, the rule against discrimination is determined to prevent
"the violation of essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social prejudice,
and to promote a society in which all persons enjoy equal recognition at law
as human beings or as members of Canadian society."21
Finally, the principle conferring equal dignity to all persons refers to both
the individual, as well as to the group to which he or she belongs.22
The Protection of Multiculturalism According to Section 27 of
the Canadian Charter of Rights and Freedoms
Section 27 of the Canadian Charter ofRights and Freedoms includes an
interpretative clause, by way of which the legislator may allow exceptions
to be made with regard to the universalistic nature of specific rights, as long
as said exceptions are reasonable, compliant with the principle of
proportionality and aimed at promoting Canada's multifaceted ethnic
mosaic. As a result, such provision acknowledges and promotes the
country's "multicultural heritage," and indirectly, it also grants members of
ethnic, religious, and linguistic groups the right to protect their cultural
identity.23
Many commentators, however, have criticized thefinaldraft adopted by
the drafters of the Charter. While some legal authors have argued that such
constitutional clauses are poorly enforceable, as they merely add up to
rhetoricalflourish,24others have found section 27 problematic because it is
difficult to define the exact legal meaning of the expression multicultural
heritage.25 Moreover, other commentators have drawn attention to the fact
that section 27 is more important for its political value, rather than its legal
impact, as it was included in the Charter in response to overwhelming
pressure put on the government by associations representing different
ethnic groups.
Similar to the controversies surrounding the interpretation of section 7,
legal and academic disputes about what is the legal significance of section
27 are tumultuous.
Indeed, there is no doubt that section 27 of the Charter does not list
specific rights to cultural identity. On the contrary, it defines
multiculturalism as an interpretative principle. In addition, section 27 is not
even formally included among those parts of the Charter that establish
various rights, but it is included in that "remedial" part that addresses how
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the Charter shall be enforced. Therefore, it keeps company with the
interpretation rules set forth by Sections 21, 22, 25, 26 and 29 of the
Canadian Charter of Rights and Freedoms. Nevertheless, section 27 is
differentfromall other interpretation principles. First, it fulfills a protective
role: it was in fact introduced in order to preserve the delicate institutional
balance reached on the matter of aboriginal peoples, as well as of linguistic
rights, of education and of multiculturalism. In addition, it has a
constructive role, as it supposed to promote the enhancement of the
multicultural heritage. Finally, it serves an instructive, though not
self-executing, function. In fact it provides constitutional underpinning to
the principle according to which Canadian uniqueness is determined by the
contribution of several different cultures. In other words, the fact that this
article can be listed among interpretation principles does not rule out the
possibility of it having a significant impact in protecting multicultural
identities and practices.
First of all, section 27 identifies its main beneficiaries, that is, those who
are obliged to preserve and enhance the multicultural heritage of
Canadians. Courts are most certainly the main target; however, section 27
appears to be intended for other recipients as well, should the Charter's
interpretation be considered logically preliminary to its implementation
and enforcement.
Consequently, the duty to read the entire Charter according to the
principle promoting Canadian multiculturalism must be taken on by the
legislator (who must abide by such principle when passing specific laws or
formulating general policies), as well as by all public authorities, when
discharging their duty to implement supportive action. Indeed,
multicultural heritage is a treasure that must be supported and protected
against potential cultural assimilation and standardization. In view ofthis, it
is worth noticing that the terms used so far - preserve, enhance - betoken an
attitude opposed to the so-called melting pot policy.
However, given its overall regulatory range, section 27 affects all
individuals, as all private activities must not get in the way of the main
constitutional objective, aimed at achieving the preservation and
enhancement of the multicultural heritage of Canadians.
With regard to its focus of attention, section 27 of the Canadian Charter
of Rights and Freedoms is an example of a so-called "open clause," which
embraces unenumerated and unanticipated referents. In fact, it not only
protects the cultural identity of the historically established minorities, but it
stretches out to offer the same recognition to all the more recently
immigrated communities, namely the "visible minorities." If this
interpretation is correct, the constitutional meaning of multicultural
"heritage" takes on a totally new dimension, as it applies to all the groups
who, now and in the future, join in creating Canada's pluralistic society. It
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suggests their active involvement in the foundation ofthe country's cultural
heritage. This is a modern notion of "population": a continuous process in
which individuals alternate and come after each other, generation after
generation.
Lastly, the concept of multicultural heritage of Canadians is not
necessarily generic, nebulous, and hard to define. First of all, its meaning
can be precisely determined by resorting to the connotation it has taken on
in the international legal order, especially within the lines of decision of
international courts and in international documents on the protection of
community identity and ethnic minorities. It is natural, for example, to
bring section 27 of the International Covenant on Civil and Political Rights
to mind, which indeed recognizes the right ofall minority members to enj oy
their culture, to profess and practice their religion as well as to speak their
language.
Besides, legal commentators can also apply so-called mediating
principles, that is, descriptive principles derived from various scientific
fields, such as the definition of culture found in Webster's Third New World
Dictionary, according to which culture can be considered as "the body of
customary belief, social forms and material traits constituting a distinct
complex tradition of racial, religious or social group," and also as "that
complex whole that includes knowledge, belief, morals, law, customs,
opinions, religion, superstition." Other legal authors have instead drawn on
sociological studies, according to which cultural heritage is a complex
concept that involves the recognition ofa rule against group discrimination,
the acknowledgement of symbolic ethnicity (namely, the aspiration—
shared by several individuals—to support the fundamental characteristics
that set their identity and personality apart), as well as the recognition of
structural ethnicity (that is, the existence of institutions and instruments
aimed at protecting the group's stability, as well as preserving its identity
against assimilating trends).26
Until now, the interpretative principle set forth by section 27 of the
Charter of Rights and Freedoms has been used with extreme moderation. It
is useful to look closely at the analysis by legal commentators as well as at
the decisions of the Supreme Court of Canada.
First of all, the Courts have employed the multicultural principle in an
identifying effort, in order to define the scope and substance of several
rights, especially of those specifically protected under section 2 of the
Charter.
With regard to religious freedom, section 27 corroborated the argument
according to which a provision establishing Sunday as a holiday was
discriminatory towards non-Christian religions and violated the duty to
protect Canadians' multicultural heritage.27 Likewise, another case
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revealed a similar approach, as the court stated that the support given to one
element of the population of Canada by the Lord's Day Act is an
unacceptable preference by the state for the religious beliefs of some
Christians.28
By contrast, the approach followed in connection with a province's
Retail Business Act, which regulates which commercial activities could
operate on Sundays, was quite different. In this context, the Supreme Court
held that the multicultural principle did not authorize a Jewish storekeeper
to do business on Sundays, even if the store had been closed on Saturday, as
it disregarded the rules established by the Retail Business Act.29
In a recent ruling, the Supreme Court was compelled to balance the
security interests of the students and school staff with religious freedom.
Even if it did not expressly refer to the multicultural clause established by
section 27 of the Charter of Rights and Freedoms, it did however allude to
the multicultural principle, as it held that the total prohibition for Sikh
students to wear the kirpan at school could not be regarded as one of the
instances sanctioned by Section 1.
On this matter, it is worth mentioning that the court justified its decision
not to apply the said section for two different reasons: on one hand, it
considered the measures chosen to limit religious freedom as not
proportionate to the pursued objective, on the other it held that "a total
prohibition against wearing a Kirpan to school undermines the value of this
religious symbol and sends students the message that some religious
practices do not merit the same protection as others." Consequently, the said
message would ultimately question some of the very basic values upon
which Canadian democracy and society are based, such as religious
tolerance, respect for minorities, and multiculturalism.30
Section 27 has also been employed by the Supreme Court in order to
better define one's right to an interpreter during litigation. Specifically, the
Court held that it would be discriminatory to restrict the interpreter from
translating the entire civil proceedings, by using the defendant's mother
tongue, whenever the defendant is a citizen of a different race and is unable
to understand English.31
Conversely, the Supreme Court did not regard section 27 as necessarily
applicable in connection with the privileges awarded to certain religious
groups, particularly with regards to educational issues. In fact, the court
maintained that the multicultural principle could not have any effect on the
exceptional provision contained in section 29 of the Charter, which, by
derogating from the equality principle, protects the rights and privileges
recognized to denominational, separate, or dissentient schools. In
particular, the court held that the favourable treatment protected by section
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29 could be regarded as one of the factors establishing the institutional
compromise on which the Canadian federation is founded.32
Although that opinion reflects the current Supreme Court doctrine, it has
not won over all the judges on the court: a dissenting opinion claimed in fact
that denying public funding to the schools belonging to minority religious
groups is not simply economically detrimental, but it is also
disadvantageous to the strengthening of one's own faith and multicultural
heritage.
By the same token, section 27 is ever more significant in connection with
the anti-discrimination rule established by section 15(1) of the Charter. On
the one hand, this provision must be read with the purpose ofpromoting the
development of multicultural values. On the other, such values cannot be
used as an excuse to encourage a discriminatory attitude towards other
groups or individuals. For example, if the decision to finance positive
actions in favour of cultural groups were approved, it would then be
discriminatory to adopt rules that did not offer equal opportunities to all of
them. Likewise, it would be discriminatory to adopt a piece of legislation
that does not supply all ethnic groups with identical access to public
services.
On this matter, the Supreme Court pointed out that safeguarding
multiculturalism requires prohibiting any kind of discrimination, even
though indirect, and consequently it requested careful consideration of the
effect that each rule has on the groups shaping Canada's ethnic mosaic. The
court concluded that even unintended consequences determined by a
specific rule can end up creating a case of discrimination.33
Secondly, if one plate of the balance scale holds the principle of equality
established by section 15 of the Charter of Rights and Freedoms, the other
om must be occupied by the multicultural principle, so as to avoid that the
possibility that both the legislator and the courts take "equality" to mean
uniformity and homogeneity. As a result, these two principles establish a
rule against difference in treatment and positive actions, should the said
measures favour certain ethnic groups only.
According to many commentators, combining the equality principle
together with the multicultural principle rules out the possibility of
adopting "assimilation" policy choices, as well as melting pot theories. It
follows that section 27 substantiates the use of rules derogating from the
equality principle. For example, even though teachers should be appointed
on a merit basis, there is no constitutional prohibition for provisions that
allow appointing them on the premise that a certain ethnic quota must be
assured among the teaching personnel, given the unique, social
environment in which the school operates. On the other hand, the Supreme
Court has held that all issues having to do with culture hold a reinforcing
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connotation, given that they have been awarded specific constitutional
recognition.34
Pointing this out is key for the management of modern, complex, and
multiracial societies. Recognizing cultural diversity in these legal orders
must be properly balanced and regulated in an attempt to ensure that each
individual leads a peaceful and tolerant existence within society. In this
way, the pluralistic perception of cultural groups comes to represent a
reason for criticism towards a more liberal and more individualistic version
of the equality principle: as one legal writer rightly stated, cultural equality
goes through the recognition of cultural pluralism.35
At the moment, however, the Supreme Court has not adopted the view
according to which the multicultural heritage interpretative rule can act as a
limitation on the exercise offreedomof expression, especially in cases of
campaigns furthering racial or group hate. The court believes that freedom
of expression constitutes a universally recognized right regardless of
whether the cultural messages are truly acceptable. Therefore, the court
held that punishing a teacher who had talked to his classroom about racist
beliefs was unconstitutional,36 as was punishing a writer who, having
denied in his book that the Holocaust had ever taken place, had been
accused of spreading untruthful facts.37
In this instance, however, it is important to take into account the
dissenting opinion that was submitted by some of the Justices. They
claimed that the limitation clause defending a free and democratic society
was applicable to the case at issue, in light of the fact that racial tolerance is
essential to a democratic society.
Conclusion
Given their role as pact between the citizens and the territories, charters are
called on to create a common foundation of values, thus promoting a sense
of belonging to the same political community. In pluralistic and
multicultural societies, the said result may be achieved only by
acknowledging both the traditional values pertaining to individual
freedom, as well as the many and diverse values brought forth due to the
multicultural nature of the country. To this purpose, the recognition of
general rights—acknowledged by all Canadians "from coast to
coast"—must be accompanied also by specific interpretation clauses,
established for the protection and advancement of the various identities
living within the same society.
In so doing, the Canadian Charter of Rights and Freedoms takes into
consideration both its past (that is, the inherent rights ofAboriginal groups),
as well as its future (namely, the ethnic mosaic, in which several ethnic
communities coexist). The Charter, however, also respects the "two souls"
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that join together in making up modern human persons: that is, the
individualistic identity and the group-belonging identity.
For this reason, section 7 of the Charter should be construed together
with section 27, in light of the fact that the former promotes the free
development of human personality, while the latter acknowledges and
enhances the various, multiple differences that make Canada a home of
diverse communities. In between these sections and acting as balancing bar
is section 15, which codifies the principle of equality: on one hand, it rules
out any discriminatory consequences for individuals and for groups, while
on the other it guarantees equal dignity to all human persons and to all
groups.
However today, 25 years after its adoption, the role played by the
Canadian Charter of Rights and Freedoms with regard to the democratic
development of Canadian society cannot be fully understood without
taking into consideration the Supreme Court rulings. Specifically, the court
holds the merit of having liberally interpreted and enthusiastically applied
the Charter, thus indeed transforming it into a living tree, "capable of
growth and development over time to meet new social, political, and
historical realities often unimagined by its framers."
From this perspective, the Supreme Court has truly been able to steer the
development ofthe Canadian society and of its institutions, gliding through
a river in which the two shores are represented by the values upheld by a
modern, liberal and democratic society: namely, a high degree of personal
autonomy, equal dignity to all people, cultural and identity pluralism, social
relations based on tolerance, and a natural duty of mutual respect.38
Notes
1.
2.
342
On the matter of constitutional protection of rights in Canada, please refer to:
Rolla, G., Lo sviluppo dei diritti fondamentali in Canada, Milano, 2000;
Tarnopolsky, W., & Beaudoin, A., The Canadian Charter of Rights and
Freedoms, Toronto, 1982.
An overview of the main steps taken towards the passing of the 1982 Constitution
Act can be found in AA. W . , L 'ordinamento constituzionale del Canada Torino,
1997; Russell, P., Constitutional Odyssey, Toronto, 1992; Knopff, R., & T.
Morton, Charter Politics, Toronto, 1992; Tarnopolsky, W., & A. Beaudoin, The
Canadian Charter of Rights and Freedoms, Toronto, 1982; Hogg, P.,
Constitutional Law of Canada, Toronto, 1985; Morton, T., "The Political Impact
of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political
Science, 1987, 31 ss. The difficult process leading to the completion of the
Canadian constitutional order is examined, among others, by: AA.W.,
Constitutional Predicament, Montreal, 1994; Cairns, A., Constitutional Struggle
from the Charter to Meech Lake, Toronto, 1991 ; Monahan, P., The Inside History, •
Toronto, 1991; Russell, P., Constitutional Odyssey, Toronto, 1002; McRoberts,
The Two Souls of the Canadian Charter of Rights and Freedoms
K., & P. Monahan, The Charlottetown Accord, the Referendum and the Future of
Canada, Toronto, 1993.
3. With regard to the Canadian legal theory on the matter of collectiverights,please
consult: Cardinal, L., "Collective Rights in Canada: A Critical and
Bibliographical Study," National Journal of Constitutional Law, 2001, 165;
Fremont, J., 'Taking Group Rights Seriously," in Magnusson, N., & A.
Soberman, Canadian Constitutional Dilemmas Revisited, Kingston, 1997.
4. On the issue, refer to: Beckton, C , "Section 27 and Section 15 of the Charter," in
Multiculturalism and the Charter, Toronto, 1987; Bottos, D., "Multiculturalism:
Section 27's Application in Charter" Alberta Journal, 1977, 169; Gibson, D.,
"Section 27 of the Charter: More than a 'Rhetorical Flourish,'" Alberta Law
Review, 1990, 590; Tran, N., "The Canadian Charter of Rights and Freedoms:
Justification, Methods and Limits of a Multicultural Interpretation," Columbia
Human Rights Law Review, 1996, 37.
5. In order to properly construe the meaning of the free and democratic clause, it is
hard to disregard the opinion of Chief Justice Dickson. The Dickson theory is
grounded in Regina v. Oakes (1986), which supplied legal commentators with a
new test, to be employed when assessing the legitimacy of any law restricting
rights sanctioned in the Charter. First of all, it is necessary to determine if and
which actual circumstances hinder one's personal exercise to a right, in a way
deemed prejudicial to the achievement of fundamental, common objectives;
subsequently, the test examines whether the means employed by the law are
proportionate to said objectives. Justice Dickson did not intend to make a
conclusive list of the potentially worthy social objectives; rather, more as an
example, he did identify respect for cultural identity, as well as for group
individuality, as valuable goals.
6. R. v. Keegstra, 1990.
7. R. v. Zundel, 1992.
8. With regard to Canada's policy on the matter of multiculturalism, please see:
Cairns, A. & C. Williams, The Politics of Gender, Ethnicity and Language in
Canada, Toronto, 1986; Cairns, A., "Constitutional Minoritarism in Canada," in
Watts-Brown, Canada: The State of the Federation, Kingston, 1990, p. 78;
Cairns, A., Reconfigurations: Canadian Citizenship and Constitutional Change,
Toronto, 1995; Watts, R.L., Multicultural Societies and Federalism, Ottawa,
1970; AA.W., Multiculturalism and The Charter: A Legal Perspective, Toronto,
1987; AA.W., Multiculturalism and the Government of Canada, Ottawa, 1984;
S. Sugunasiri, Towards Multicultural Growth, Toronto, 2001; Megyery, K.,
Ethno-cultural Groups and Visible Minorities in Canadian Politics: The
Question of Access, Toronto, 1991; Kymlicka, W., The Rights of Minority
Cultures, Oxford, 1995; Kymlicka, W., Multicultural Citizenship, Oxford, 1996;
Leonard, E., Multiculturalism in Canada: Challenges and Changes,
Scarborough, 1992; Hudson, M., Multiculturalism and the Charter, Toronto,
1987; Day, J.F., Multiculturalism and the History of Canadian Diversity,
Toronto, 2000; Brotz, H., "Multiculturalism in Canada: A Model," Canadian
Public Policy, 1980, 41; Berry, J., & J.A. Laponce, Ethnicity and Culture in
Canada: The Research Landscape, Toronto, 1994.
9. Christian, T., "Section 7 of the Charter,"Alberta Law Review, 1984,223; Cohen,
J., Regulating Intimacy: A New Legal Paradigm, Princeton, 2002; Colvin, E.,
"Section 7 of the Charter" Canadian Bar Review, 1989, 560; Garant, P.,
"Fundamental Rights and Fundamental Justice," in A. Beaudoin & Ed Ratushny,
The Canadian Charter of Rights and Freedoms, Toronto, 1989, 331; Hogg, P.,
343
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10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
.
344
Constitutional Law of Canada, Toronto, 1997,1064; Johnstone, I., "Section 7 of
the Charter and Constitutionally Protected Welfare," University of Toronto
Faculty of Law Review, 1988, 1; Lee, T., "Section 7 of the Charter: An
Overview," University of Toronto Faculty of Law Review, 1985, 1; Long, R.,
Rights to Privacy, New York, 1997; Whyte, J., "Fundamental Justice: The Scope
and Application of Section 7," Manitoba Law Journal, 1983,455.
A noteworthy use of Section 7 of the Charter of Rights and Freedoms in its
function as procedural fairness can be detected in a recent ruling by the Supreme
Court (Charkaoui v. Canada [Citizenship and Immigration], 2007). The Court
held that the procedures implemented pursuant to the Immigration and Refugee
Protection Act 2001 for the protection of citizens against the dangers of terrorism
were "fundamentally unfair" and "did not conform to fundamental justice."
Hogg, P., Constitutional Law of Canada, Toronto, 1997,1064.
Stephens, M., "Fidelity to Fundamental Justice: An Originalist Construction of
Section 7 of the Canadian Charter ofRights and Freedoms," National Journal
of Constitutional Law, 2002,183.
Re Motor Vehicle Act, 1985.
Strayer, B., "Life under the Canadian Charter: Adjusting the Balance between
Legislatures and Courts," Public Law, 1988,367.
Aldeman,E., The Right to Privacy, NewYork, 1995;McWirmer,D.,PnVfl<ryasa
Constitutional Right, New York, 1992; McNaim, C, Privacy Law in Canada,
Toronto, 2001.
Morgentaler, 1988.
Rodriguez v. British Columbia, 1993.
Singh v. Minister ofEmployment and Immigration, 1985.
Re R.L. Grain and Couture, 1984.
Mendes, E., 'Taking Equality into the 21 st Century: Establishing the Concept of
Equal Human Dignity," National Journal of Constitutional Law, 2000-2001,3.
Law Canada v. Minister ofEmployment and Immigration, 1999.
Eldridge v. Att. Gen. ofB.C. and B.C. Medical Services Commission, 1997.
On multiculturalism in Canada, please refer to: AA.W., Multiculturalism and
the Charter, Toronto, 1987; Abu Laban, Y., & T. Nieguth, "Reconsidering the
Constitution, Minorities and Politics in Canada," Canadian Journal of Political
Science, 2000, 465; AA.W., Multiculturalism and the Charter: A Legal
Perspective, Toronto, 1987; AA.W., Multiculturalism and the Government of
Canada, Ottawa, 1984; Berry, J., & J.A. LAPONCE, Ethnicity and Culture in
Canada: The Research Landscape, Toronto, 1994; Bissoondath, N., & L.
Xiaoping, "Selling Illusions: The Cult of Multiculturalism in Canada," Journal of
Canadian Studies, 1995,130; Cairns, A., Citizenship, Diversity and Pluralism:
Canadian and Comparative Perspectives, Montreal, 1999; Dare, W., "Beyond
General Pronouncements: A Judicial Approach to Section 27 of the Charter,"
Alberta Law Review, 1995, 569; Day, J.F., Multiculturalism and the History of
Canadian Diversity, Toronto, 2000; Hudson, M., Multiculturalism and the
Charter, Toronto, 1987; Leonard, E., Multiculturalism in Canada: Challenges
and Changes, Scarborough, 1992; Megyery, K., Ethno-cultural Groups and
Visible Minorities in Canadian Politics: The Question of Access, Toronto, 1991;
Raynard, S., National Identity in Canada an Cosmopolitan Community, Ottawa,
1997; Watts, R.L., Multicultural Societies and Federalism, Ottawa, 1970;
Kymlika, W., Multicultural Citizenship: A Liberal Theory of Minority Rights,
Oxford, 1995; The Rights of Minority Cultures, Oxford, 1995; Multicultural
Citizenship, Oxford, 1996; Satzewich, V., Deconstructing a Nation:
The Two Souls of the Canadian Charter of Rights and Freedoms
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
Immigration, Multiculturalism and Racism in the 90s Canada, Halifax, 1993;
Toope, S., "Cultural Diversity and Human Rights," McGill Law Journal, 1977,
169. For further investigation on the presence of minority groups within the
Canadian territory, please see Ceccherini, R, "Diritti individuali v. diritti
comunitari," in Rolla, G., Lo sviluppo dei dirittifondamentali in Canada, Milano,
2000.
On the matter, refer to Hogg, P., Constitutional Law of Canada, Toronto, 1985.
See Brotz, H., "Multiculturalism in Canada: A Model," Canadian Public Policy,
1980,41.
On the matter, please refer to: Magnet, J., "Multiculturalism and Collective
Rights: Approach to Section 27," in Beaudoin-Mendes, The Canadian Charter of
Rights and Freedoms, MontœuX, 1996,1032.
R.v. Big MDrug Mart, 1985.
R. v. W.H. Smith Ltd., 1983.
R. v. Edward Books and Art, 1986.
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006.
R. v. Tran, 1994.
Adler v. Ontario, 1996.
Canadian National Railways v. Bhinder, 1985.
Andrews v. Law Society ofBritish Columbia, 1989.
Eisemberg, A., 'Two Types of Pluralism in Canada," in H. Lazar & T. Mcintosh,
How Canadians Connect, Montreal, 1999.
R. v. Keegstra, 1990.
R. v. Zundel, 1992.
On the matter, refer to: Rolla, G. (éd.), Eguali, ma diversi. Identità ed autonomia
secondo la giurisprudenza delta Corte Suprema del Canada, Milano, 2006.
345